Even protected laws invalid if they violate basic rights: SC

Clearly reinforcing the pre-eminence of the Constitution and a citizen's fundamental rights, the Supreme Court, in a milestone verdict today, said that laws in the Ninth Schedule of the Constitution do not enjoy ''absolute immunity'' from judicial review as envisaged by the legislature.

The unanimous 108-page verdict from the nine-judge Constitution Bench, headed by Chief Justice Y K Sabharwal, made it clear that even though an Act is put in the Ninth Schedule by a Constitutional amendment, its provisions would be open to challenge on the ground that it destroys or damages the "basic structure" (of the Constitution) by eroding fundamental rights that pertain to the basic structure.

"A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court," the bench held.

The bench, including Justices Ashok Bhan, Arijit Pasayat, B P Singh, S H Kapadia, C K Thakker, P K Balasubramanyan, Altamash Kabir and D K Jain, said: "All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them."

The cut-off date refers to the landmark Keshavanand Bharti vs State of Kerala case in 1973, where a full bench of 13 judges of the Supreme Court said that the Parliament had the power to amend any or all provisions of the Constitution. Seven judges, including then Chief Justice Sikri, ruled that Parliament could not use its powers to alter the basic structure of the Constitution. Each judge gave his view on what he thought was the basic structure but there was no unanimity. The other six judges (the minority view) said fundamental rights belonged to the basic structure and could not be amended by Parliament.

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